The Rights and Interests of Extra-Regional Powers in the South China Sea under International Law

Introduction

Currently, the South China Sea (SCS) issue has been broken down into two concentric circles, which respectively represent states within and outside the region. It is noteworthy that the logic behind the argument of some extra-regional powers is clearly self-contradictory. On the one hand, they rebuke regional states, particularly China, for so-called “excessive maritime claims”; on the other hand, they remain silent on their rights and interests in the SCS under international law. Instead, they express evasive rhetoric about the “freedom of navigation and overflight”. In order to rectify the understanding on these issues, the author lists in this essay the rights that non-coastal states can enjoy in the SCS under international law, and analyzes the practices of relevant states from a legal perspective.

According to the United Nations Convention on the Law of the Sea (hereinafter referred to as UNCLOS) and general international law, non-coastal states do not own any territory in the SCS, so they do not enjoy any maritime entitlements based on claims on continents and islands. These states primarily enjoy navigational rights in the waters, which are not unrestricted but bound by UNCLOS and general international law. In addition, coastal states may invite them to cooperate on the management and conservation of marine resources, protection of the marine environment, and marine scientific research.

I. Navigational Rights  under the UNCLOS

According to UNCLOS and general international law, every state enjoys legal navigational rights in all waters. Therefore, states not bordering the SCS also enjoy these navigational rights. However, considering the text, purposes or principles of UNCLOS, the navigational rights of non-coastal states are not free from restriction. A balance should be struck with the legitimate rights of coastal states in the SCS. When exercising navigational rights, non-coastal states should pay due respect for the legitimate rights of coastal states.

The navigational rights under UNCLOS and general international law are by no means equal to unlimited “freedom of navigation”. It is common knowledge that UNCLOS and general international law provide different regimes for navigational rights in different waters. Within the territorial sea of a coastal state, the vessels of other states have the right of innocent passage. Within the exclusive economic zone (EEZ) of a coastal state, other states enjoy a navigational right similar to the “freedom of navigation” on the high seas. Nevertheless, pursuant to Article 58(3) of UNCLOS, in exercising such right in the EEZ, states shall have due regard to the rights of the coastal state; in straits used for international navigation, innocent passage or the right of transit passage is provided; all states enjoy the right of innocent passage through the archipelagic waters, as well as the right of archipelagic sea lanes passage (ASLP). All states are entitled to the “freedom of navigation” on the high seas. But Article 87(2) stipulates that: “These freedoms shall be exercised by all States with due regard for the interests of other States in their exercise of the freedom of the high seas, and also with due regard for the rights under this Convention with respect to activities in the Area”.

The “freedom of navigation” on the high seas is in no way absolute freedom. Due regard should be paid for the legal rights of other states under UNCLOS. According to the provisions of UNCLOS, when other states exercise navigational rights in the waters under jurisdiction of coastal states, it should be checked by the rights of coastal states. This shows a balance between the rights of coastal states and the navigational rights of other states.

Take the right of innocent passage in territorial seas as an example. Coastal states must respect the right of innocent passage of other states. But more importantly, whether the passage is innocent is to be determined by coastal states. The innocent passage of non-coastal states should be in line with the regulations of coastal states. If a coastal state finds out that the passage of a foreign vessel engages in any of the activities listed in Article 19 (2), the coastal state may consider it a “non-innocent passage”. Article 25 of UNCLOS entitles coastal states to the “rights of protection” by stating that they may take “necessary steps” in their territorial seas to prevent the non-innocent passage. Meanwhile, Article 21 of UNCLOS stipulates that coastal states may adopt laws and regulations relating to innocent passage through their territorial seas.

 The exercise of freedom of navigation on the high seas is also bound by other international laws. According to United Nations Convention on the Law of the Sea 1982: A Commentary by the University of Virginia in the United States (US), the freedom of navigation on the high seas is subject to obligations under international law in respect to the protection of the marine environment, compliance with navigational rules, and the salvage of life.[1]

In exercising the navigational right in an EEZ, a state shall have due regard for the interests of the coastal state. Scholars from the US also recognize this point, so the principal divergence between Chinese and US scholars lies in whether the interests under the obligation of “due regard” set forth in Article 58(3) are only limited to resource-related rights.[2] Pursuant to the Vienna Convention on the Law of Treaties (VCLT), the practices of contracting parties to UNCLOS after it is concluded are very important to answer what is “due regard for the interests”, or whether the interests cover the security interests of coastal states. Countries like Malaysia have a similar position on this issue with China. Additionally, there should be a balance between the rights of coastal states and navigational rights of non-coastal states in EEZs as a type of special seas. Paying due regard to the security interests of coastal states exactly meets the principles and purposes of UNCLOS.

UNCLOS does not define “navigation”, but it does not mean that it could be expanded indefinitely. Having gone too far from “navigation”, the military operations by the US are getting more frequent, focused, and intense in recent years.[3] An analysis shows that there are mainly six interconnected types of military operations by the US in the SCS. The alleged “navigation” of the US military actually includes many non-navigational military operations, such as military exercises, drills, and deterrence activities.[4] In spite of that, the US often conducts these complex military operations (except acts of war) under the disguise of “freedom of navigation”. Using military tools to deter and challenge the sovereignty and claims over maritime entitlements of coastal states is well beyond the scope of normal navigation and necessary incidental activities of navigation, threatening the security interests of coastal states.

II. Other Rights of Non-coastal States of the SCS

Pursuant to Article 123 of UNCLOS, coastal states may invite non-coastal states in the SCS to cooperate on the management and conservation of marine resources, protection of the marine environment, and marine scientific research. The security and military issues are not involved in Article 123. That is to say, the military interests of non-coastal states in the SCS are not protected by this Article. As to the form of cooperation, a non-coastal state could participate in the cooperation only when the coastal states invite them. It is not a proactive participation, nor one by force.

The application of other treaties between non-coastal states and coastal states are governed by Article 311 of UNCLOS. Firstly, only agreements that are not incompatible with UNCLOS can continue to apply. Meanwhile, UNCLOS emphasizes the use of seas for “peaceful purposes.” Furthermore, these agreements should not affect the rights under UNCLOS of the coastal states. Thus, even if a non-coastal state and a relevant state sign an agreement compatible with UNCLOS, which covers military alliances and security-related cooperation, it could not be used to confront other coastal states in the SCS, or affect the rights of other coastal states in the waters.

Some countries, including the US, know very well about these regulations. That is the reason why they always talk about “freedom of navigation and overflight”, as this is their only legitimate right in the SCS, far fewer than the maritime entitlements of coastal states based on claims on continents and islands. To justify their frequent military actions on sea, the non-coastal states may find it necessary to expand the scope of this only right. For them, it will be the best if frequent intelligence gathering, reconnaissance, and even military provocation could be interpreted as the exercise of “freedom of navigation and overflight”. Meanwhile, they know very well that this idea is groundless and controversial. If they make it public, regional countries, including ASEAN Member States, will be not comfortable with. Therefore we can see a paradox. On the one hand, in the speeches of leaders, diplomatic or policy documents, countries including the US claim to uphold “freedom of navigation and overflight” so as to justify their presence in the SCS. But on the other hand, these countries are reluctant to answer why they step up the confrontational military deployment and actions in the SCS. Sometimes they answer with some political terms like “strengthening regional partnership or alliances”. In fact, they are trying to put international law including UNCLOS under a seclusive security regime centered around themselves.

“Freedom of navigation and overflight” cannot justify complicated military operations of US and other extra-regional powers in the South China sea, apart from which they need to seek other legal basis to defend their actions. If let extra-regional powers intervene in the affairs of the South China Sea, challenge the sovereignty and claims over maritime entitlements of coastal states of the waters, and increase the risk of confrontations in the waters under the disguise of “navigation”, the peace and stability of the waters are bound to suffer extraordinary negative impacts, which will compromise the fundamental interests of coastal states of the South China Sea in the long term.